People v. Glenn CA4/1

Filed 1/24/23 P. v. Glenn CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079998
Plaintiff and Respondent,
v. (Super. Ct. No. SCD290416)
ISAIAH LEE GLENN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert J. Trentacosta, Judge. Request for judicial notice granted. Affirmed.
R. Chris Lim, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Following the overdose death of Stewart H., Defendant Isaiah Lee
Glenn pleaded guilty to furnishing fentanyl in violation of Health & Safety
Code section 11352, subdivision (a). The trial court denied probation and
imposed a split four-year middle term. Glenn appealed, and appointed
appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende). Glenn was apprised of his right to file a supplemental brief but
did not do so. Independently reviewing the entire record (People v. Kelly
(2006) 40 Cal.4th 106, 119), we find no arguable issues and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 8, 2019, Glenn acquired fentanyl from codefendant Brittany
Calvert and gave some to Stewart.1 Glenn and Stewart smoked the
substance together in a parked van and fell asleep. Glenn awoke the next
morning and returned to his apartment around 8:00 a.m. When he left,
Stewart remained sleeping and was snoring. When Glenn returned around
10:30 a.m., he found Stewart hunched over the backseat, unresponsive.
Glenn called 911, and his cell phone records later revealed his role in
procuring and furnishing the drug. Stewart’s death was ruled an accident
caused by acute fentanyl intoxication.
The San Diego County District Attorney charged Glenn in June 2021
with involuntary manslaughter by unlawful act (Pen. Code, § 192, subd. (b),
count 1) and furnishing a controlled narcotic (Health & Saf. Code, § 11352,
subd. (a), count 2).2 In November 2021, Glenn pleaded guilty to count 2, and
count 1 was dismissed.
In January 2022, the court sentenced Glenn to a four-year middle term
in county jail. (See § 1170, subd. (h)(2).) Glenn had requested probation, but
the court concluded this was “just simply not a probation case” because
furnishing heroin laced with fentanyl had “unfortunate, but imminently
1 Because Glenn pleaded guilty soon after the felony complaint was filed,
we draw case-related facts from the probation report.
2 Further undesignated statutory references are to the Penal Code.
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foreseeable consequences.” The court selected the middle term in the triad
because it reflected “the seriousness of the conduct in this case” while offering
Glenn a chance at rehabilitation. It ordered the last year of the four-year jail
term suspended under section 1170, subdivision (h)(5)(B) and specified terms
of mandatory supervision. Glenn was ordered to pay a $300 restitution fine
and victim restitution in an amount to be determined.
After Glenn filed a notice of appeal, appellate counsel filed a motion
before the trial court to correct the calculation of presentence custody credits.
(§ 1237.1.) The motion sought an additional 123 days of presentence custody
credit for time Glenn spent at a court-mandated residential treatment
facility. (See § 2900.5, subd. (a).) In August 2022, the court granted his
request and updated the abstract of judgment to reflect the additional
credit.3
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and
proceedings in the trial court. Counsel presented no argument for reversal
but asked this court to review the entire record for error in accordance with
Wende, supra, 25 Cal.3d 436.4 Independently reviewing the record, we
discern no reasonably arguable appellate issue.
The felony complaint filed two years after the offense was timely.
(§ 801 [three-year limitations period for offenses punishable under § 1170,
3 We grant Glenn’s request for judicial notice of the court order awarding
him 123 additional days of presentence custody credit and the amended
abstract of judgment. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
4 Counsel did not identify any issues under Anders v. California (1967)
386 U.S. 738 (Anders) that “might arguably support the appeal” (id. at p.
744), but a listing of Anders issues is not required by California’s Wende
procedure. (See People v. Garcia (2018) 24 Cal.App.5th 314, 324.)
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subd. (h)]; see Health & Saf. Code, § 11352, subd. (a) [specifying punishment
under Pen. Code, § 1170, subd. (h)].) Because Glenn did not request a
certificate of probable cause, he may not raise questions going to the validity
of his plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1088 (Mendez);
§ 1237.5; Cal. Rules of Court, rule 8.304(b).) Accordingly, his notice of appeal
challenges only “the sentence or other matters occurring after the plea that
do not affect the validity of the plea.”
A certificate of probable cause is not required to challenge the sentence
or post-plea matters. (Mendez, supra, 19 Cal.4th at p. 1088.) But the record
discloses no reasonably arguable appellate issue concerning sentencing. In
accordance with the plea agreement, the trial court sentenced Glenn to four
years in county jail, selecting the middle term. (Health & Saf. Code, § 11352,
subd. (a).) Consistent with section 1170, subdivision (h)(5), the court entered
a split sentence with mandatory supervision for the last year of the
suspended term. (See generally, People v. Conatser (2020) 53 Cal.App.5th
1223, 1227.) After the notice of appeal was filed, the court granted Glenn’s
request to amend the award of presentence custody credits to account for
time spent in a court ordered rehabilitation program prior to sentencing.
Glenn was not entitled to presumptive lower term sentencing under
recent amendments to the Determinate Sentencing Law despite his relative
youth because he was two months past his twenty-sixth birthday at the time
of the offense. (See §§ 1170, subd. (b)(6)(B), 1016.7, subd. (b).) Effective
January 1, 2023, courts must consider alternatives to incarceration—
including probation—under new legislation, consistent with the express
legislative intent “that the disposition of any criminal case use the least
restrictive means available.” (§ 17.2; see Stats. 2022, ch. 775, § 2 (Assem. Bill
No. 2167).) But nothing in that legislation compels a trial court to accept a
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less restrictive option. (Stats. 2022, ch. 775, § 1(e); see § 17.2, subd. (c).)
Here, consistent with section 17.2, the court fully considered but rejected
Glenn’s request for probation, deeming that placement inappropriate given
the circumstances of the case.
Having reviewed the entire record pursuant to Wende, supra, 25 Cal.3d
436 and Anders, supra, 386 U.S. 738, we find no reasonably arguable
appellate issue. Glenn has been adequately represented by counsel in this
appeal.
DISPOSITION
The judgment is affirmed.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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